In Re H v. Abdul-Jabarri Minor ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re H. V. ABDUL-JABARRI, Minor. August 17, 2023
No. 364400
Wayne Circuit Court
Family Division
LC No. 2022-000030-NA
Before: REDFORD, P.J., and K. F. KELLY and RICK, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental rights
to the minor child, HAJ, under MCL 712A.19b(3)(j) (reasonable likelihood that the child will be
harmed if returned to parent), (k)(v) (parent’s abuse of child included life-threatening injury), and
(k)(vi) (parent’s abuse of child included murder or attempted murder). We affirm.
I. FACTUAL BACKGROUND
Respondent is the biological mother of HAJ and her brother, MAJ, who is now deceased.
In January 2022, petitioner, the Department of Health and Human Services (DHHS) filed a
permanent custody petition stating that mother neglected to care or provide support for HAJ and
MAJ, and that her home was unfit for the children. The petition alleged that mother suffered from
mental health issues, and that she repeatedly stabbed HAJ and MAJ with a knife during an incident
on January 1, 2022. At the time, HAJ was three years old, and MAJ was one year old. Mother
also strangled MAJ while sitting on top of him during the incident. Both children were
hospitalized. MAJ was not expected to live. The petition alleged it was contrary for both children
to remain in mother’s care because of her ongoing mental health issues and the severe physical
abuse inflicted on HAJ and MAJ. After the petition was filed, MAJ died from his injuries.
The trial court exercised jurisdiction over HAJ in October 2022. In December 2022, a
termination hearing was held. The court concluded that termination of mother’s parental rights
was appropriate under MCL 712A.19b(3)(b)(j), (k)(v), and (k)(vi). Additionally, the court found
that the termination was in HAJ’s best interests, despite the fact that she had been placed with a
caregiver who was a biological relative. The court subsequently entered an order terminating
mother’s parental rights to HAJ.
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II. ANALYSIS
A. BEST INTERESTS
Mother argues that the trial court erred by determining that the termination of her parental
rights was in HAJ’s best interests under MCL 712A.19b(5). We disagree.
“Whether termination of parental rights is in the best interest of the child must be proved
by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
We review the trial court’s findings and ruling that termination is in the child’s best interests for
clear error. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). “A finding is clearly
erroneous if the reviewing court has a definite and firm conviction that a mistake has been
committed, giving due regard to the trial court’s special opportunity to observe the witnesses.” In
re Moss, 301 Mich App at 80 (quotation marks and citation omitted).
“The trial court should weigh all the evidence available to determine the children’s best
interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (citation omitted). In
making a best-interest determination, the court should consider such factors as “the child’s bond
to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality,
and the advantages of a foster home over the parent’s home.” Id. (quotation marks and citation
omitted). The trial court may also consider the child’s well-being while in care and the possibility
of adoption. Id. at 714 (citation omitted). Additionally, “the fact that a child is living with relatives
when the case proceeds to termination is a factor to be considered in determining whether
termination is in the child’s best interests.” In re Olive/Metts, 297 Mich App 35, 43; 823 NW2d
144 (2012) (citation omitted). “If the court finds that there are grounds for termination of parental
rights and that termination of parental rights is in the child’s best interests, the court shall order
termination of parental rights and order that additional efforts for reunification of the child with
the parent not be made.” MCL 712A.19b(5).
Mother’s contention that the trial court erred by finding that termination was in HAJ’s best
interests lacks merit. DHHS presented evidence that mother stabbed both HAJ and MAJ in the
throat and strangled MAJ while sitting on him. HAJ, who was three years old at the time, suffered
severe wounds to her throat and required surgery to repair the damage. MAJ, who was one year
old, was hospitalized for an extended period and needed to be hooked up to a ventilator in order to
breathe. He later died from his injuries. The stabbing incident is not the first time that HAJ has
been exposed to mother’s erratic and dangerous behavior, as mother has a history of severe mental
health issues and has attempted to harm herself on multiple occasions. In one instance, for
example, mother left HAJ alone at home while she ran down the street with a knife; on another
occasion, mother poured boiling water over her own head in an attempt to commit suicide. DHHS
also provided evidence that mother’s home was dirty, the kitchen was full of rotten food, and there
were many “disturbing” murals and writings painted on the walls. Considering the risk of harm
HAJ is likely to experience if mother were to retain her parental rights, we agree with the trial
court’s conclusion that termination was in HAJ’s best interests.
Mother further argues the trial court erred in its best-interest determination because HAJ
was placed in the care of a relative, which weighs against termination. However, mother overlooks
that the trial court explicitly considered HAJ’s placement with her aunt and ultimately concluded
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that the risk of harm to HAJ “outweigh[ed] the relative placement factor in the mother’s case.”
We again agree with the trial court. While relative placement does weigh against termination, it
is just one of many factors a court may consider in its determination. See In re White, 303 Mich
App at 713-714. As previously discussed, mother has a history of severe mental illness. Her
actions caused severe physical injury to HAJ, and ultimately resulted in the death of her son, MAJ.
Thus, we conclude that even though HAJ was placed with a relative caregiver, the risk of harm
that HAJ is likely to experience in mother’s care outweighs any factor against termination. Thus,
the trial court did not err by finding that termination was in HAJ’s best interests.
B. ADA ACCOMMODATIONS
In relation to her best-interests argument, mother also argues that DHHS had an obligation
under the Americans with Disabilities Act, 42 USC 12101 et seq., to ensure that she was not
excluded from the benefit of services offered, and that DHHS failed to accommodate her disability
or provide her with services to address her mental health issues. We disagree.
A claim that a parent’s rights under the ADA have been violated “must be raised well
before a dispositional hearing regarding whether to terminate her parental rights, and the failure to
timely raise the issue constitutes a waiver.” In re Sanborn, 337 Mich App 252, 263 n 3; 976 NW2d
44 (2021) (quotation marks and citation omitted). Mother did not raise this issue in the trial court,
and instead raises it for the first time on appeal. We “review unpreserved claims for plain error
affecting substantial rights.” Id. (citation omitted). “[A]n error affects substantial rights if it
caused prejudice, i.e., it affected the outcome of the proceedings.” In re Utrera, 281 Mich App 1,
9; 761 NW2d 253 (2008) (citation omitted).
In general, “DHHS has a duty to make reasonable efforts to reunify a child with his or her
parent.” In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017). Further, in cases where a
parent is entitled to accommodations under the ADA, DHHS must make “reasonable modifications
to the services or programs offered to a disabled parent[.]” Id. at 86. However, under
MCL 712A.19a(2), DHHS is not required to make reasonable efforts toward reunification if
“[t]here is a judicial determination that the parent has subjected the child to aggravated
circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PS 238,
MCL 722.638.” Under MCL 722.638(1)(a), “[m]urder or attempted murder” constitutes an
aggravated circumstance. Here, the trial court made a judicial determination that mother’s
attempted murder of HAJ and MAJ was an aggravated circumstance and concluded that
“[r]reasonable efforts [were] not required to prevent or eliminate the children’s removal from the
home.” Thus, DHHS was not required to make reasonable efforts toward reunification, nor was it
required to offer her ADA accommodations. See In re Hicks/Brown, 500 Mich at 86. Mother’s
argument must fail.
III. CONCLUSION
The trial court did not clearly err when it determined the termination of mother’s parental
rights was in HAJ’s best interests. Further, DHHS was not required to provide mother with ADA
accommodations or reunification services under the circumstances presented in this case.
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Affirmed.
/s/ James Robert Redford
/s/ Kirsten Frank Kelly
/s/ Michelle M. Rick
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